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Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Deep- Sea Red Crab Fishery; Atlantic Deep-Sea Red Crab Fishery Management Plan
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: June 20, 2002 (Volume 67, Number 119)]
[Proposed Rules]
[Page 41936-41950]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn02-35]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 020531136-2136-01; I.D. 041802C]
RIN 0648-AP76
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Atlantic Deep-
Sea Red Crab Fishery; Atlantic Deep-Sea Red Crab Fishery Management
Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement the Atlantic Deep-Sea
Red Crab Fishery Management Plan (FMP) developed by the New England
Fishery Management Council (Council). This proposed rule would
establish: A limited access program for the directed fishery; a target
total allowable catch (TAC) level; a Days-at-Sea (DAS) allocation
effort control program; permitting and reporting requirements,
including an Interactive Voice Response (IVR) system for limited access
vessels; trip limits and incidental harvest allowances; trap/pot
limits; processing at sea restrictions; and a framework adjustment
process among other measures. The purpose of this proposed action is to
implement permanent management measures for the Atlantic deep-sea red
crab (red crab)(Chaceon quinquedens) fishery pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)
and the FMP and to prevent overfishing of the red crab resource.
DATES: Comments must be received on or before 5 p.m., local time, on
July 23, 2002.
ADDRESSES: Written comments should be sent to Patricia A. Kurkul,
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn
Drive, Gloucester, MA 01930. Mark the outside of the envelope,
``Comments on Red Crab FMP.'' Comments also may be sent via facsimile
(fax) to (978) 281-9135. Comments will not be accepted if submitted via
e-mail or Internet.
Comments regarding the collection-of-information requirements
contained in this proposed rule should be sent to the Regional
Administrator and to the Office of Information and Regulatory Affairs,
Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA
Desk Officer).
Copies of the FMP, its Regulatory Impact Review (RIR) and the
Initial Regulatory Flexibility Analysis (IRFA), and the Final
Environmental Impact Statement (FEIS) are available from Paul J.
Howard, Executive Director, New England Fishery Management Council, 50
Water Street, The Tannery - Mill 2, Newburyport, MA 01950.
FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy
Analyst, 978-281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The FMP was developed by the Council in response to concerns that
overfishing was occurring due to increased landings and increasing
participation and interest in the red crab fishery. Prior to 1970,
there was no known fishery for Atlantic deep-sea red crab, although
there was some incidental catch of red crab in other fisheries. In the
early 1970s, small markets opened up for the species, spurring one or
two vessels to attempt to fish directly for red crab. Markets for this
species fluctuated over the next decade or so, as did attempts at new
techniques to improve the harvest, preservation, and processing of the
crabs. Throughout the 1980s, there was a fairly consistent fishery for
red crab, with known landings annually averaging over 5.5 million lb
(2,495 mt). In the early 1990s, landings fluctuated, but they have been
steadily increasing since about 1995. Industry reports suggest that
landings exceeded 7 million lb (3,175.2 mt) in 2000.
In late 1999, faced with increasing landings and increased interest
in the fishery from potential new entrants, a group of fishermen
requested that the Council develop a Red Crab FMP. In November 1999,
the Council voted to begin development of the FMP.
In January 2000, at the recommendation of its Red Crab Committee,
the Council voted to establish a control date for the red crab fishery,
in case the Council chose to differentiate historic participants in the
red crab fishery from new, speculative entrants. The Council also
intended that a control date serve as a disincentive to any new vessels
considering moving to New England to begin fishing for red crab.
On February 2, 2000, the Council published in the Federal Register
a Notice of Intent to Prepare an
[[Page 41937]]
Environmental Impact Statement (EIS), officially beginning the
Council's FMP scoping process (65 FR 4941). The Council hosted two
scoping meetings, well attended by the red crab industry and other
interested parties, at which there was general support for the
development of an FMP, including consideration of management measures
establishing a limited entry program, a minimum allowable crab size, a
male-crab only fishery, a processing-at-sea prohibition, and reasonable
trap/pot limits.
The Council established March 1, 2000, as the control date for the
red crab fishery through publication in the Federal Register (65 FR
11029) on that date.
In November 2000, the Council was notified that at least two new
vessels had announced their intentions to relocate to New England from
other parts of the country to fish for red crab. The existing members
of the fishery and the Council became concerned that the additional
fishing power and effort represented by these new entrants could
jeopardize the sustainability of the resource before the FMP could be
developed and implemented.
In January 2001, faced with an increase in the number of vessels
targeting the red crab resource, the Council requested that the
Secretary of Commerce (Secretary) take emergency action to prevent
overfishing in the red crab fishery while the Council continued to
develop an FMP. NMFS, on behalf of the Secretary, determined that the
existing level of exploitation and the likelihood of substantial
increases in total exploitation in the area north of Cape Hatteras, NC,
presented serious conservation problems necessitating emergency action
to prevent overfishing. On May 8, 2001, NMFS published emergency
regulations designed to prevent overfishing, effective May 18 through
November 14, 2001 (66 FR 23182).
On July 23, 2001, to address comments it received from the
industry, NMFS amended the emergency regulations by publishing a
revision of the conversion factor used to determine the whole weight
equivalent of partially processed or butchered crabs (66 FR 38165). The
emergency regulations were extended for a second 180-day period, from
November 15, 2001 through May 14, 2002 (66 FR 56781).
The threat of overfishing the red crab resource is the primary
concern requiring management attention, particularly if additional
vessels enter the fishery. Maximum sustainable yield (MSY) is estimated
at 6.24 million lb (2,830.4 mt) for the male-only red crab fishery.
Commercial landings of red crab have exceeded this level several times
since the development of the fishery. Overfishing is of particular
concern due to the nature of the species; red crabs are typically slow-
growing and major recruitment events are believed to rarely occur.
Historically, a small number of vessels have achieved landings in
excess of MSY. The five vessels participating in the directed red crab
fishery prior to 2000, averaged 96 ft (29.3 m) in length, fished an
average of 544 pots, and had the capacity to land an average of
approximately 78,000 lb (35,380 kg) of red crab per trip. This suggests
that these five vessels alone can exceed the original estimate of MSY.
Status of the Stocks
The MSY estimate was calculated based on a 1974 NMFS survey of the
red crab resource and the resulting stock assessment (Serchuk, 1977).
Several assumptions underlie the calculation of MSY: (1) That the
fishery continues to retain and land only male crabs larger than 4
inches (10.2 cm); that the natural mortality rate for red crabs is
0.15; and (3) that the management unit extends to Cape Hatteras, NC.
The status of the red crab fishery will be updated if and when new
scientific data are obtained.
Overfishing Definition
The FMP proposes an overfishing definition that considers both the
rate of exploitation and the condition of the stock. Overfishing would
be defined as any rate of exploitation that caused the ratio of current
exploitation to an idealized exploitation under MSY conditions to
exceed 1.0. The FMP includes several methods that could be used to
define idealized exploitation, depending on the type of data available.
The red crab stock would be considered to be in an overfished
condition if any one of the following three conditions is met:
Condition 1 -- The current biomass of red crab in the FMP
management unit is below \1/2\ Bmsy.
Condition 2 -- The annual fleet average catch per unit effort
(CPUE), measured as marketable crabs landed per trap haul, continues to
decline below a baseline level for 3 or more consecutive years.
Condition 3 -- The annual fleet average CPUE, measured as
marketable crabs landed per trap haul, falls below a minimum threshold
level in any single year.
Optimum Yield (OY)
OY would be specified at 95 percent of MSY, or 5.928 million lb
(2,689 mt). This approach is intended to incorporate future changes to
MSY into the estimate of OY, to account for any uncertainty about the
status or vulnerability of the resource or the current levels of
fishing effort.
Management Unit
The boundaries of the management unit would be limited to the
waters north of 35 15.3' N. lat., bounded by the coastline of the
continental United States in the west and north, and the Hague Line and
seaward extent of the U.S. Exclusive Economic Zone (EEZ) in the east.
The proposed boundaries reflect the traditional extent of the red crab
fishery in the Northeast United States, are consistent with prior
action taken by the Secretary (the Emergency Regulations), incorporate
a well-known bio-geographic boundary (Cape Hatteras, NC), and are
consistent with other New England Council FMPs.
Fishing Year
The fishing year would begin on March 1 of each year, which
reflects traditional fishing practices prior to times of relatively
higher effort and landings. The timing of the fishing year is
anticipated to reduce the margin of error associated with projections
of landings made about future fishing years. It also reflects the time
after which the cumulative landings for the first 6 months of the
fishery are expected to be the highest, which would reduce the margin
of error associated with projected landings during the second half of
the year.
Permitting Requirements
The owner of any commercial vessel who wishes to fish for, catch,
possess, transport, land, sell, trade, barter, butcher or partially
process at sea red crab in or from the red crab management unit would
be required to obtain a Federal red crab permit. Two types of Federal
permits would be required: (1) A limited access red crab permit would
be required for vessels to participate in the directed fishery; this
permit would be issued only to vessels that meet specified eligibility
criteria; and (2) a red crab incidental catch permit would be required
in order for any vessel to land an incidental catch of red crabs up to
500 lb (226.8 kg) per fishing trip. All vessels would be eligible for
this permit. Vessels issued the limited access permit would also be
allowed to fish under the red crab incidental catch rules if they had
not declared their intent to use a red crab DAS.
Owners of vessels issued a limited access red crab permit would,
upon permit renewal beginning with the
[[Page 41938]]
second fishing year, be able to declare out of the red crab fishery for
the following fishing year by submitting a binding declaration to the
Regional Administrator at least 180 days prior to the following fishing
year. NMFS would presume that a vessel owner intends to fish the
following fishing year unless such a declaration is received. The
requirement for owners of vessels to declare if their intent is not to
fish prior to each fishing year is necessary in order to facilitate any
needed adjustment of the annual allocation of DAS per vessel, which is
based on the expected number of vessels that would actually participate
in the fishery. A vessel owner who declared out of the fishery for the
following year would have to wait until the next year's permit renewal
application process to declare back into the fishery for the next full
fishing year.
Vessel owners would have 180 days from the effective date of the
regulations to apply for their initial limited access permits. Owners
who failed to renew their permit for any fishing year, except if they
declared their intent not to participate, would be ineligible to renew
their permits in subsequent years.
As part of the application for a limited access red crab permit,
vessel owners would have to declare the maximum number of traps/pots
they use per string and the maximum number of strings they employ, such
that the product of the maximum number of traps/pots per string and the
maximum number of strings declared is no more than 600 traps/pots.
Dealers who purchase red crab product from any vessel would be
required to obtain a Federal dealer permit. Red crabs harvested from
the red crab management unit could only be sold by a federally
permitted vessel to federally permitted dealers.
Operators of vessels issued a Federal red crab vessel permit would
be required to obtain a Federal operator permit. An individual who
already holds an operator permit for another federally managed fishery
would not need to reapply, since there is no qualification or test for
this permit.
Qualification Criteria for Limited Access
Subject to the restrictions defined in this proposed rule, a vessel
could qualify for a limited access red crab permit if the vessel
demonstrated that its average landings per year of red crabs during the
3-year period prior to the March 1, 2000, control date were >250,000 lb
(113,398 kg).
Reporting Requirements
This proposed rule would extend the existing Northeast Region
Vessel Trip Report (VTR) system to vessels with red crab permits. This
would require the owner or operator of vessels issued either a limited
access or incidental catch permit to submit monthly reports on fishing
effort, landings, and discards within 15 days of the end of the
reporting month. Both limited access and incidental catch vessels would
be required to complete and submit VTRs for all fishing trips,
regardless of whether they land any red crab.
Owners or operators of vessels participating in the limited access
fishery would also be required to report their total red crab landings
through an IVR system within 24 hours of the termination of any trip
that lands red crab.
Dealers issued a red crab dealer permit would be required to submit
a weekly dealer report on forms provided by or approved by the Regional
Administrator. If authorized in writing by the Regional Administrator,
the form(s) could be submitted electronically or through other media.
The report would be provided weekly, and would have to be postmarked
and received within 16 days after the end of each reporting week. A
negative report would be required even if there were no crabs
purchased.
Target TAC
An annual specifications process would provide the mechanism to
make adjustments to the amount of target TAC available to the fishery
and the number of DAS to be allocated to each vessel authorized to
participate in the limited access fishery. Specifications would also
include the specification of OY and/or adjustments to trip/possession
limits. The Council's Plan Development Team (PDT) would review the most
recent landings and effort data on an annual basis in order to provide
the information necessary for the Council to recommend the
specifications for the following fishing year. Each fishing year, the
landings in the red crab fishery would be counted against a target TAC.
The target TAC would be set annually through the annual specification
process at a level equal to the most current estimate of OY for the
fishery. The target TAC would be adjusted based on any projected
overage or underage expected for the current fishing year. For example,
when the Council is setting the annual specifications for the following
fishing year, if OY is 5.928 million lb (2,689 mt) and the Council
projects that 6.75 million lb (3,062 mt) will be harvested in the
current fishing year (a 822,000 lb (372,853 kg) overage), then the
target TAC for the following year could be set at 5.106 million lb
(2,316 mt). If, on the other hand, the Council projects that only 5.25
million lb (2,381 mt) will be harvested in the current fishing year (a
678,000 lb (307,536 kg) overage), then the target TAC could be set at
6.606 million lb (2,996 mt). The target TAC for the first full fishing
year would be 5.928 million lb (2,689 mt) of whole red crab or its
equivalent.
Allocations of Red Crab DAS
Along with the annual target TAC, the annual specification process
would involve calculation of the total DAS that could be utilized by
the directed fishery, based on average catch per DAS from the previous
year. Total DAS would be allocated equally to all vessels issued a
limited access red crab permit, divided by the number of vessels that
intend to participate in the fishery for the fishing year. Any unused
DAS allocated to a vessel in one fishing year could be carried over to
the next fishing year, up to a maximum of 10 DAS or 10 percent of the
total allocated DAS, whichever is less. The partial end of the year DAS
carry-over is intended to ensure that at least some unused fishing
effort would not be wasted, while providing no incentive to hoard DAS.
This measure would also limit the potential annual fishing capacity to
roughly 10 percent above the baseline. The FMP allocates only 130 DAS
to each limited access vessel for the fishing year that ends February
28, 2003, because the FMP, if approved, would not go into effect until
well after the start of the fishing year. However, if the FMP is
approved, the management measures would not be effective for a full
year. Because there would be a hiatus between the expiration of the
emergency rule described above and the implementation of the FMP and
implementing regulations, if approved, the FMP specifies the method by
which vessel DAS allocations would be adjusted (see Initial
Implementation Year, below).
From March 1, 2003, through February 29, 2004, each participating
vessel would be allocated 156 DAS, unless this allocation were changed
because of one or more vessel owners declaring out of the fishery or
under the FMP specification process. The allocation of 156 DAS per
participating vessel would remain the baseline unless modified through
the specification process.
A DAS would be counted as a whole day (24 hours). Any portion of a
day on
[[Page 41939]]
which a vessel is out of port would count as a full DAS. For example,
if a vessel embarked on a fishing trip at 11:00 p.m. on June 1, that
day of departure would count as one DAS. If it returned from the trip
at 1:00 a.m. on June 10, that day of return would also count as one
DAS. The vessel would have used 10 DAS during the fishing trip, rather
than the 8.0833 DAS that would be counted as used if DAS were counted
on an hourly basis.
DAS Allocation for Initial Implementation Year
During the initial year of implementation of the FMP, to account
for red crab removed from the resource during the hiatus period, the
Regional Administrator would calculate the amount of red crab landed
during the hiatus period between the expiration of the red crab
emergency regulations on May 15, 2002, and implementation of the FMP.
This landings total would be deducted from the target TAC (5.928
million lb)(2,689 mt) and the remainder would represent the amount of
target TAC available for the initial fishing year under the DAS
program. The percentage of the target TAC remaining would be calculated
and vessels participating in the DAS program would be allocated the
calculated percentage of the initial baseline of DAS (for example, if
landings during the hiatus period equal 20 percent of the target TAC,
the allocation of 130 DAS would also be reduced by 20 percent, with the
result rounded down to the nearest whole number).
Trip Limits During a Red Crab DAS
All vessels issued a limited access red crab permit would be
subject to a baseline trip limit of at least 75,000 lb (34,019 kg) of
whole red crab or its equivalent. If a vessel could show documented
proof of one trip with higher landings during the limited access
qualification period, then that vessel would qualify for a trip limit
equal to the larger trip, rounded to the nearest 5,000 lb (2,268 kg). A
vessel that partially processes or butchers its harvested red crabs
would apply the more appropriate of two recovery rate formulas in
accordance with Sec. 648.263(a)(2) to determine its largest trip limit
during the qualification period. Such proof would have to be received
by NMFS within 30 days after receipt of a vessel owner's application
for an initial limited access red crab vessel permit. A vessel owner
would have to fish consistent with the 75,000-lb (34,019-kg) trip limit
until authorized for a trip higher than 75,000 lb (34,019 kg) by NMFS
through issuance of an updated vessel permit.
Incidental Catch Limit
An incidental catch limit of 500 lb (226.8 kg) per trip, in whole
weight equivalent, would be implemented for all vessels issued a red
crab incidental catch permit. This incidental catch limit would also
apply to vessels issued a limited access red crab permit when they are
not fishing under a red crab DAS.
Female Red Crab Possession Restrictions
The retention and landing of female red crabs in the limited access
red crab fishery would be prohibited, except for an incidental catch
allowance equal to the amount that would fill one standard U.S. fish
tote per vessel per trip (approximately 100 lb (45.4 kg)). This measure
would not apply to vessels fishing under the provisions of the red crab
incidental catch permit, because the Council did not want to provide
any incentive to seek any more than the first 500 lb (227 kg) of red
crab harvested.
Processing At Sea Restrictions
This proposed rule would prohibit the full processing of red crabs
at sea, but would allow partial processing and butchering. ``Full
processing'' is defined as any activity that removes meat from any part
of a red crab.
Crabs must be landed whole or split in half along the length of the
carapace, with legs and claws still attached to the carapace parts. To
determine the equivalent whole crab weight for crabs landed in half
sections, this proposed rule provides two different calculations,
depending on whether the gills and other detritus are removed. For crab
halves where gills and other detritus have not been removed (typically
referred to as ``butchering''), the equivalent whole weight is equal to
the weight of the halves multiplied by 1.56 (a 64-percent recovery
rate). For crab halves where all of the gills and other detritus have
been removed (typically referred to as ``partial processing''), the
equivalent whole weight is equal to the weight of the halves multiplied
by 1.72 (a 58-percent recovery rate).
This requirement is intended to remove the incentive and prevent
the harvesting of red crabs for their claws and/or legs alone. This
measure would also facilitate the administration and enforcement of the
male-only restriction in the directed fishery, because the sex could be
discerned either by the shape of the tail flap on whole crabs, or by
the outline of the tail flap on partially processed or butchered crabs.
Vessels issued a limited access red crab permit and fishing under a
red crab DAS would be allowed to possess red crab claws and legs
separate from crab bodies equal to the amount that would fill one
standard U.S. fish tote per vessel per trip (approximately 100 lb (45.4
kg)). This mutilation allowance is intended to account for incidental
and unintended loss of claws and/or legs during normal fishing
operations. Vessels fishing under the provisions of the red crab
incidental catch permit could possess no more than two claws and eight
legs per crab on board the vessel.
Gear Requirements and Restrictions
Vessels issued a limited access red crab permit and fishing under a
red crab DAS would be subject to a maximum limit of 600 red crab traps/
pots. If the total number of traps/pots declared by the owner of a
vessel on the annual vessel permit application were less than 600, the
vessel would be subject to that declared limit on traps/pots.
Vessels issued a limited access red crab permit and fishing under a
red crab DAS would be prohibited from hauling any fishing gear other
than red crab gear. Red crab gear would be identifiable through
required markings on the buoys used at the end of each set of traps/
pots.
The maximum allowable size of all traps/pots used in the limited
access red crab fishery when under a red crab DAS would be 18 ft\3\
(0.51 m\3\) in volume. In conjunction with the trap/pot limit described
above, this would prevent a potential increase in the per-day
efficiency of fishing vessels fishing under a red crab DAS.
The use of parlor traps/pots or non-trap/pot gear by a vessel
fishing in the limited access red crab fishery when under a red crab
DAS would be prohibited. Because red crab traps/pots, unlike parlor
traps/pots, do not prevent the escape of crabs from the trap, many of
the crabs that might enter the traps during the period between trips
would be gone before the vessel returned to haul the traps on a
subsequent trip. Also, lost red crab traps do not present a ghost
fishing problem, because the crabs can escape from the traps. Vessels
fishing under the red crab incidental catch provisions, including
vessels in the red crab fishery when not fishing under a red crab DAS,
would not be prohibited from using parlor traps/pots or non-trap/pot
gear.
Annual Monitoring and Framework Adjustment Measures
The Council would prepare a biennial Stock Assessment and Fishery
[[Page 41940]]
Evaluation (SAFE) Report for the red crab fishery and its resource. The
Red Crab PDT would meet at least annually to review the status of the
stock and the fishery. The PDT would report any necessary adjustments
to the measures and recommendations for the specifications and TACs to
the Council's Red Crab Committee, which in turn would recommend
appropriate changes to the Council. Specifications would be recommended
to NMFS, and changes to management measures would be adopted through a
framework adjustment or FMP amendment.
The framework adjustment process, on an annual basis or at any
other time during the fishing year, would be similar to that used in
other Northeast Region fisheries. This process would permit changes to
be made to the regulations in a timely manner without going through the
FMP amendment process.
During the framework adjustment process, the Council would meet to
develop new management measures to the FMP. Either during, or at the
conclusion of the framework process, the public would be provided an
opportunity to offer comments on the Council's framework adjustment
process and the newly-developed management measures.
In the instant case, the Council provided the public with an
opportunity to comment on the framework adjustment measures. The
management measures and/or changes to them could be implemented and
adjusted through the framework process and specifically include the
following: (1) OY; (2) management unit; (3) technical parameters for
MSY; (4) description and identification of EFH; (5) description and
identification of HAPCs; (6) incidental catch limits; (7) minimum size
of landed crabs; (8) restricting directed fishing to male crabs only;
(9) butchering/processing restrictions; (10) trap/pot limits; (11) gear
requirements/restrictions; (12) TAC; (13) trip limits; (14) controlled
access; (15) DAS; and (16) any other measure currently included in the
FMP.
Pursuant to section 304(b) of the Magnuson-Stevens Act, the
Secretary has made minor modifications to the framework process
outlined in the regulations. These modifications help to clarify the
Secretary's authority and discretion to publish framework measures as a
final rule without prior notice and comment. Although the Council,
after consideration of numerous criteria, may recommend that a rule be
published directly as a final rule, this recommendation does not affect
the Secretary's authority or discretion in deciding whether it is
appropriate to publish the rule without prior notice and comment.
However, in order to publish a final rule without prior notice and
comment, the Secretary must make a finding under the Administrative
Procedure Act that good cause exists to waive prior notice and comment.
Essential Fish Habitat (EFH)
The Council proposes to use depth zone affinities for EFH. EFH for
red crab includes those areas of the offshore waters (out to the
offshore U.S. boundary of the EEZ), in depths between 200--1,800 m, as
identified and described in section 3.7.4 of the FMP.
This proposed rule would also revise the definitions of
``Council'', ``Day(s)-at-Sea'', ``Fishing year'', ``Processor'',
``Processing, or to process, in the Atlantic herring fishery'', and
``Sorting machine'', to clarify the meaning of each and to provide
consistency with text used in like definitions from other species
regulations.
Classification
This proposed rule has been determined to be not significant for
the purposes of E.O. 12866.
The Council prepared an FEIS for the FMP; a notice of availability
for the DEIS was published on November 30, 2001 (66 FR 59787). The
Council has selected a preferred alternative management strategy
intended to mitigate, to the extent possible, all possible social and
economic adverse effects while minimizing risks to the resource and its
environment. Overall, the proposed action is expected to have
significant positive effects on the red crab resource relative to the
no action alternative.
The Council prepared an initial regulatory flexibility analysis
(IRFA) that describes the economic impact this proposed rule, if
adopted, would have on small entities. A description of the action, why
it is being considered, and the legal basis for this action are
contained in the preamble and in the SUMMARY.
The following sections provide a summary of the analyses of the
potential impacts of the management alternatives considered in the FMP.
The full descriptions of the management alternatives, and the specific
measures associated with each alternative, are provided in detail in
sections 4.2 and 4.3 of the FMP. Also, the full analyses of the
potential impacts of the specific measures associated with each
alternative are provided in detail in section 5.3 of the FMP. A full
analysis of the differences among the management alternatives is
provided in section 5.4 of the FMP.
Quantitative information is limited for this fishery. When
possible, the quantitative impacts of the alternatives were considered,
but in many instances it was only possible to qualitatively describe
impacts.
The proposed measures could affect any vessel that has participated
in the red crab fishery, all of which readily fall within the Small
Business Administration's (SBA) definition of small business and the
RFA's definition of ``small entity.'' Therefore, all alternatives and
analyses associated with the FMP and proposed rule necessarily are
alternatives and analyses applicable to impacts on small entities. The
Council IRFA identified 86 individual vessels that reported some
landings of red crab during 1991-2001. The IRFA considered the level of
participation in the fishery by examining cumulative landings made by
the vessels over the 11-year period. Forty-seven vessels made
cumulative landings of less than 1,000 lb (453.6 kg). Twenty-two
vessels had cumulative landings between 1,000 lb (453.6 kg) and 10,000
lb (4,535.9 kg). Only two of these vessels landed 5,000 lb (2,268 kg)
or more in any one year.
Four vessels reported between 10,000 lb (4,535.9 kg) and 100,000 lb
(45,359.2 kg) of cumulative landings during the period, though none of
these vessels made landings in more than 2 of the 11 years. Another six
vessels reported between 100,000 lb (45,359.2 kg) and 1,000,000 lb
(453,592.4 kg) of cumulative landings in the period. None of these
vessels reported any landings prior to 1995, and two vessels reported
landings only in 2001.
Seven vessels reported cumulative landings greater than 1 million
lb (453,592.4 kg). Of the seven, two vessels have not reported any
landings since 1993. The remaining five vessels are currently reporting
landings.
The Council examined more recent data in the IRFA, but noted that
the available landings and revenue data are incomplete because red crab
vessels and dealers have not been required to participate in the
existing NMFS mandatory reporting program for vessels and dealers. If
vessels or dealers are involved in one of the other fisheries that
requires Federal permits and mandatory reporting, their red crab
activity has been included in those reports. This circumstance means
that the stated number of entities subject to the regulation is a
lower-bound estimate, since the number of non-
[[Page 41941]]
federally permitted entities cannot be estimated.
The Council's IRFA also utilized information obtained through a
voluntary survey of participants in the red crab fishery. Most of the
vessel owners who responded to the survey reported that they are
dependent upon red crab landings for 100 percent of their annual
income. The processors who responded to the survey reported that they
all process many species besides red crab, and that red crab accounts
for an average of 11.5 percent of their fish processing operations.
The IRFA notes that 17 vessels requested the Letter of
Authorization (LOA) required under the emergency regulations to harvest
more than 100 lb (45.4 kg) of red crab per trip during the period May
18 - November 14, 2001. Of those vessels, seven actually reported red
crab landings during the period. Only six vessels made multiple trips
during the emergency period and consistently landed at or near the trip
limit of 65,000 lb (29.5 mt).
In addition to the proposed management program, the Council
considered eight management program alternatives and a ``no action''
alternative. Each management program is composed of a suite of
management measures, though some measures are common to most or all of
the alternatives. Most of the alternatives included limited access
programs, and all of the alternatives included some level of incidental
catch limits for vessels targeting species other than red crab. In
addition, all of the management alternatives include requirements for
fishing gear to be marked, restrictions on the use of non-trap gear in
the directed fishery, and permit and reporting requirements. While
there are economic impacts on small entities associated with these
measures, the impacts are the same for all of the alternatives. The
impacts of these measures will be described separately from the
discussion of the alternatives.
Limited Access Program
The limited access eligibility criteria included in the proposed
action requires a vessel to have landed more than 250,000 lb (113.40
mt) of red crab during the 3 years prior to the control date (March 1,
1997 - February 29, 2000). The Council expected a minimum of five
vessels to meet these eligibility criteria. The Council considered
establishing less restrictive eligibility criteria, and expected a
minimum of eight vessels to meet the least restrictive criteria
considered, which would have required a vessel to have landed 40,000 lb
(18,143.7 kg) or more during the eligibility period of March 1, 1997--
February 29, 2000. This implies that three entities may be negatively
impacted because the proposed limited access program will exclude them
from the directed fishery. These three vessels landed at least 10,000
lb (4,535.9 kg) of red crab for 3 years prior to the control date, for
an average of 3,333 lb (1,511.8 kg) per year. The IRFA estimated the
maximum revenue loss to be $2,833 per year for each of these vessels.
The IRFA also evaluated the impact of the proposed program by
comparing the qualifying vessels with the vessels that fished multiple
times under LOAs issued under the emergency regulations. This
comparison indicates that one entity may be excluded from the directed
fishery by the proposed criteria because the vessel entered the fishery
after the control date of March 1, 2000. This vessel does not currently
participate in the fishery and has left the New England area. The
impacts on this vessel will be severe, but cannot be detailed in the
IRFA because of data confidentiality restrictions.
The revenue effects on these impacted entities would be moderated
if they can adapt their fishing activities and redirect their fishing
activity onto other species. It appears that most will have this
option. Of the 17 vessels noted above that were issued LOAs under the
emergency action, 14 had the vessel permits necessary to fish in other
fisheries, including other limited access fisheries such as American
lobster, summer flounder, scup and black sea bass.
Incidental Catch Allowance
The proposed action would implement an incidental catch limit of
500 lb (226.8 kg) per trip. The Council believed that this would ensure
that the offshore lobster fishery, as well as other fisheries, would be
able to continue to land relatively small amounts of red crab as
incidental catch. Alternative levels for incidental catch that were
considered were 50-lb (22.7-kg), 100-lb (45.4-kg), and 1,000-lb (453.6-
kg) limits. The Council's IRFA examined red crab landings data for the
period 1998-2000 and identified trips that landed red crab as
incidental catch. Approximately 27 percent of trips landed 50 lb (22.7
kg) or less; nearly 40 percent landed up to 100 lb (45.4 kg); nearly 75
percent landed up to 500 lb (226.8 kg); and 89 percent landed up to
1,000 lb (453.6 kg).
Gear Restrictions
All of the alternatives would require red crab gear to be marked in
a manner consistent with current industry practices, so the impacts of
the gear-marking requirements are minor. In addition, all alternatives
would prohibit vessels targeting red crab from using any gear other
than pot/trap gear. The directed fishery currently uses only pot/trap
gear, so there are no impacts associated with this restriction.
Permits and Reporting Requirements
Vessels landing red crab would be required to have permits, as
would dealers purchasing red crab from permitted vessels. Operators of
vessels with red crab permits would be required to obtain operator
permits. Vessels landing red crab would need to submit logbook reports,
and dealers purchasing this species would need to submit dealer
reports. Some vessels and dealers are currently issued the required
permits as a result of their participation in other managed fisheries.
For those entities, the red crab fishery would be added to an existing
permit and there would be no new impacts.
Some vessel owners and dealers may have to obtain Federal permits
for the first time. In these instances, the costs associated with
completing the necessary applications would be: Vessel permit, $7.50/
applicant; dealer permit, $7.50/applicant; and operator permit, $15.00.
Annual costs associated with completing vessel trip reports are
estimated at $20.00. Annual costs associated with dealer reporting are
estimated at $30.00.
Impacts of Alternatives on Vessels
The economic impacts of the other measures included in the
alternatives considered by the Council are summarized below. The
proposed action is referred to in the IRFA as Alternative 5 (Preferred
Alternative).
Proposed Action: Target TAC, DAS and Trip Limits
The proposed action would establish a target TAC at a level that
would prevent overfishing. In order to constrain landings to the level
of the target TAC, DAS would be allocated to each vessel that qualified
for the limited access permit. These DAS would be calculated based on
the average landings in the fishery, but each vessel would be allowed
to land red crab under a trip limit restriction of at least 75,000 lb/
trip (34,019.4 kg/trip). A vessel that demonstrated higher landings in
the past would be assigned a trip limit equal to the highest landings
on a historical trip. In addition to the trip limit restriction, the
limited access vessels would be limited to using 600 pots/traps. The
landings of female crabs
[[Page 41942]]
(other than a small allowance for accidental retention) would be
prohibited. This would limit the extent to which red crabs could be
butchered or processed prior to landing.
The impact of the DAS under the proposed action presumed a
potential DAS allocation of up to 183 DAS each. This represents a
reduction from the number of days that red crab vessel owners reported
being at sea (200-300 days). The IRFA notes that the owners of five
vessels active in the fishery commented that they could operate
profitably on an allocation of 183 days. Because vessels can expend
their DAS when they choose, DAS are expected to allow flexibility in
fishing activity and more consistent supply to the red crab market.
The proposed trip limit would allow vessels to operate at their
best historical level, so impacts are expected to be slight. The use of
historical levels would maintain each vessel's individual competitive
position within the fishery. The IRFA noted that it would not always be
possible for a vessel to duplicate its highest level of landings, so
that, on average, vessel trips would likely land less than the vessel
trip limit.
Several of the measures in this alternative are consistent with the
way the fishery currently operates and so would have no impact. In
response to market demand, red crab landings have been composed almost
exclusively of male crabs. The average number of traps used in the
fishery is estimated at 560, so the 600-trap limit would have no
impacts, except to prevent an expansion of effort. The restrictions on
red crab processing at sea are intended to improve the ability to
enforce the trip limits and restrictions on landing females. The
butchering/processing restriction is consistent with the practice of
most of the vessels known to participate in the fishery, although it
appears at least one vessel would have to modify its operations.
Alternative 1: Emergency Rule
The incidental catch allowance, gear restrictions, permits and
reporting requirements are included in this alternative. This
alternative does not include a limited access program. The principal
management measure in this alternative is a hard TAC, with closure of
the directed fishery required when the TAC is attained. This
alternative would also establish trip limits and trap limits. When
quotas are relatively low, the fishing industry generally attempts to
land as much as possible before the TAC is attained and the fishery is
closed. This results in a glut of products that may exceed market
demand, resulting in lower revenues to fishermen and economic waste. It
also interrupts supply to markets due to the closed fishery. Each
regulated entity would, therefore, experience unstable revenue and have
to deal with market supply problems. The fishery under the emergency
regulations demonstrated this effect.
Alternative 2: Hard TAC with Trap/Pot Limits
The limited access program, incidental catch allowance, gear
restrictions, permits and reporting requirements are included in this
alternative. This alternative would establish a trap limit for all
limited access vessels, intended to make fishing effort equivalent.
This alternative would also prohibit most landings of female red crab
and would restrict butchering/processing at sea. The major impacts
associated with this alternative would be related to the fishery
closures when the TAC was attained, and to the trap limit. The impacts
of the hard TAC would be the same as in Alternative 1. The impacts of
the trap limit would be to force vessels to operate at less than their
full capacity, reducing their efficiency. Reducing the number of traps/
pots from current levels would reduce the catch without any associated
reduction of costs, resulting in reduced profitability and higher costs
per crab harvested.
Alternative 3: Hard TAC, Trap/Pot Limits, and Trip Limits
The limited access program, incidental catch allowance, gear
restrictions, permits and reporting requirements are included in this
alternative. The measures in Alternative 2 are also included, and a
trip limit measure is added. All limited access vessels would be
restricted to the same trip limit, whether or not the vessels had the
ability to make landings higher than the trip limit. Such vessels would
be forced to operate in an inefficient manner, and in some cases might
not generate enough revenue to cover their variable costs. Some of
these vessels could decide not to participate in the fishery. The
impact of such decisions could be offset by fishing for other species,
but it is impossible to estimate how much additional revenue this would
generate.
Alternative 4: Target TAC with DAS
The limited access program, incidental catch allowance, gear
restrictions, permits and reporting requirements are included in this
alternative. This alternative would establish a trap limit for all
limited access vessels, prohibit most landings of female red crab, and
restrict butchering/processing at sea. This alternative would set a
target TAC, and allocate DAS to limited access vessel intended to
maintain landings consistent with the target TAC. The only difference
between this alternative and the measures in the proposed action is
that this alternative would not establish trip limits. The lack of a
trip limit would reduce the impact on the limited access vessels by
allowing them to make each trip as profitable as possible. However, the
Council selected the proposed action because the addition of trip
limits would constrain vessels to operate at historical levels only,
ntaining each vessel's relative individual competitive position within
the fishery, as of the control date. It would also constrain the total
fleet to meet the conservation objectives of the FMP.
Alternative 5: Trip Limits and Set Number of Trips
The limited access program, incidental catch allowance, gear
restrictions, permits and reporting requirements are included in this
alternative. This alternative would establish a trap limit for all
limited access vessels, prohibit most landings of female red crab, and
restrict butchering/processing at sea. This alternative would allocate
a specified number of trips to limited access vessels, and set a trip
limit for such vessels. The only difference between this alternative
and that contained in the proposed measures is that vessel activity
would be controlled on a trip level, rather than a DAS level, and there
would be no formalized calculation of a target TAC. Even though a TAC
would not be specified, the allocation of trips and establishment of
trip limits would have to take the total catch into account. Depending
on the level of the trip limit, it could require vessels to operate in
an inefficient manner. Consideration was given in this alternative to
establishing trip limits specific to each vessel, which could have
improved the efficiency of operations and reduced the impacts.
Alternative 6: All Possible Measures
The limited access program, incidental catch allowance, gear
restrictions, permits and reporting requirements are included in this
alternative. This alternative included all of the measures in the
proposed action, but added a minimum size requirement. The minimum size
restriction is projected to have little impact because there is no
market for small red crabs, so this alternative has economic impacts
[[Page 41943]]
similar to those of the preferred alternative.
Alternative 7: IVQ with Controlled Access
The limited access program, incidental catch allowance, gear
restrictions, permits and reporting requirements are included in this
alternative. In addition, this alternative would establish a TAC, and
establish Individual Vessel Quotas (IVQs) that would allocate to each
vessel an individual percentage share of the TAC. Vessels would be able
to operate at their peak efficiency, maximizing their revenue, and thus
their profit. The creation of use rights means that some vessel owners
would gain economically and some would lose; this creates a
redistribution of wealth and has equity implications. New quota-based
programs including IVQs are currently not allowed under the Magnuson-
Stevens Act.
Alternative 8: IVQ Only
The incidental catch allowance, gear restrictions, permits and
reporting requirements are included in this alternative. This
alternative would not establish a limited access program, but would
establish an IVQ. In the absence of a limited access program, more
vessels would participate in the fishery. Because of this, each IVQ
vessel would have a smaller share of the TAC than in the previous
alternative. The economic benefits of IVQ would still be realized, but
would be shared among a larger group of vessels thus diminishing per-
vessel share. New quota-based programs including IVQs are currently not
allowed under the Magnuson-Stevens Act.
Alternative 9: No Action
Without regulatory action, additional vessels would enter the
fishery and current participants could increase harvest levels without
restriction. In the short term, landings and revenue could increase for
many vessels, but because uncontrolled landings could not be sustained,
eventually the profitability of all vessels would decrease. With the
entry of additional vessels, the catch per vessel would decrease. There
would initially be an increased supply of red crabs to consumers
because landings would not be restricted, but the long-term effect
would be decreased supply and, presumably, higher prices. Uncontrolled
and potentially escalating fishing effort could have negative economic
impacts on those businesses that depend on the red crab fishery.
Economic Impacts on Dealers
In 2001, the NMFS dealer reports indicated that seven dealers
purchased red crab; of these, only one purchased more than 1,500 lb
(680.4 kg). For the other six, red crab appears to have represented a
minor part of their business. Consideration of impacts on dealers is
hampered by the limited data available. The dealer(s) who purchased 96
percent of the red crab landed cannot be identified in the existing
data.
Another way to look at dealer dependence on red crab is to consider
the dollar value of red crab. By this measure, only one dealer depended
on red crab for more than $200,000 in revenue. In 2000, there were
three dealers listed in the dealer database that purchased 12 percent
of the red crab landings. The dealer(s) who purchased 88 percent of the
red crab landings could not be identified in the existing data.
The proposed action has only limited impact on dealers because the
red crab fishery is expected to operate at levels similar to those in
recent years.
Competitive Effects Analysis
Most, if not all, of the vessels, dealers, and processors fall
within the definition of small entities and, thus, any alternatives to
reduce impacts are necessarily alternatives affecting impacts on small
entities. The voluntary survey indicated that one processor employs
1,000 people, which is a number greater than that specified in the
definition of a small entity. However, the maximum number of year-round
employees, as opposed to seasonal, for any processor, was listed as 400
so it is possible that all dealers would be appropriately categorized
as small entities. There is also an indication that a fish and seafood
wholesaler that employs 150 people may not be a small entity. However,
the percentage of this wholesaler's business revenue that comes from
the sale of red crab products ranges from less than 1 percent to 33
percent and averages only slightly more than 25 percent. Because of the
small nature of the fishery and the issue of confidentiality, it is not
possible to disclose if there are disproportionate size effects. There
are no disproportionate costs of compliance among the affected small
entities. The proposed action does not create regulations that
duplicate, overlap, or conflict with any state regulation or other
Federal law.
A copy of this analysis is available from the Council (see
ADDRESSES).
This rule contains eight collection-of-information requirements,
which have been submitted to OMB for approval. The public's reporting
burden for the collection-of-information requirements includes the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection-of-information requirements.
The new reporting requirements and the estimated time for a
response are as follows:
Vessel trip reports, OMB control number 0648-0212
(5 minutes/response).
Dealer purchase reports, OMB control number 0648-0229
(10 minutes/response).
Limited access vessel permits, OMB control number 0648-0202 (5
minutes/response).
Incidental catch vessel permits, OMB control number 0648-0202 (5
minutes/response).
Dealer permits, OMB control number 0648-0202
(5 minutes/response).
Operator permits, OMB control number 0648-0202
(60 minutes/response).
Observer deployments, OMB control number 0648-0202
(2 minutes/response).
Gear marking requirements, OMB control number 0648-0351
(36 minute/response).
Public comment is sought regarding: Whether the proposed collection
of information is necessary for the proper performance of the functions
of the agency, including whether the information shall have practical
utility; the accuracy of the burden estimate; ways to enhance the
quality, utility, and clarity of the information to be collected; and
ways to minimize the burden of the collection of information, including
through the use of automated collection techniques or other forms of
information technology. Send comments on these or any other aspects of
the collection of information to NMFS (see ADDRESSES) and to OMB at the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington DC 20503 (Attn: NOAA Desk Officer).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act, unless that collection-of-
information displays a currently valid OMB control number.
List of Subjects in 50 CFR Part 648
Fishing, Fisheries, Reporting and recordkeeping requirements.
[[Page 41944]]
Dated: June 14, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.1, the first sentence of paragraph (a) is revised to
read as follows:
Sec. 648.1 Purpose and scope.
(a) This part implements the fishery management plans (FMPs) for
the Atlantic mackerel, squid, and butterfish fisheries (Atlantic
Mackerel, Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon
FMP); the Atlantic sea scallop fishery (Scallop FMP); the Atlantic surf
clam and ocean quahog fisheries (Atlantic Surf Clam and Ocean Quahog
FMP); the NE multispecies and monkfish fisheries ((NE Multispecies FMP)
and (Monkfish FMP)); the summer flounder, scup, and black sea bass
fisheries (Summer Flounder, Scup, and Black Sea Bass FMP); the Atlantic
bluefish fishery (Atlantic Bluefish FMP); the Atlantic herring fishery
(Atlantic Herring FMP); the spiny dogfish fishery (Spiny Dogfish FMP);
the Atlantic deep-sea red crab fishery (Deep-Sea Red Crab FMP); and the
tilefish fishery (Tilefish FMP). * * *
* * * * *
3. In Sec. 648.2, the definitions of ``Council'', ``Day(s)-at-
Sea'', ``Fishing year'', ``Processor'', ``Processing, or to process, in
the Atlantic herring fishery'', and ``Sorting machine'' are revised and
new definitions for ``Atlantic deep-sea red crab (red crab)'', ``Full-
processing (fully process), with respect to the Atlantic deep-sea red
crab fishery'', ``Parlor trap/pot'', ``Red Crab Management Unit'', and
``Red crab trap/pot'' are added in alphabetical order to read as
follows:
Sec. 648.2 Definitions.
* * * * *
Atlantic deep-sea red crab (red crab) means Chaceon quinquedens.
* * * * *
Council means the New England Fishery Management Council (NEFMC)
for the Atlantic herring, Atlantic sea scallop, Atlantic deep-sea red
crab, and NE multispecies and monkfish fisheries; or the Mid-Atlantic
Fishery Management Council (MAFMC) for the Atlantic mackerel, squid,
and butterfish; Atlantic surf clam and ocean quahog; summer flounder,
scup, and black sea bass; spiny dogfish; Atlantic bluefish; and
tilefish fisheries.
* * * * *
Day(s)-at-Sea (DAS), with respect to the NE multispecies and
monkfish fisheries (except as described in Sec. 648.82(k)(1)(iv)),
Atlantic sea scallop fishery, and Atlantic deep-sea red crab fishery,
means the 24-hour periods of time or any part thereof during which a
fishing vessel is absent from port to fish for, possess or land, or
fishes for, possesses or lands, regulated species, monkfish, scallops,
or red crabs. With respect to the red crab fishery, any portion of a
calendar day in which a vessel is out of port, after having declared
into the red crab DAS fishery, shall count as a full DAS.
* * * * *
Fishing year means: (1) For the Atlantic sea scallop and Atlantic
deep-sea red crab fisheries, from March 1 through the last day of
February of the following year. (2) For the NE multispecies and
monkfish fisheries, from May 1 through April 30 of the following year.
(3) For all other fisheries in this part, from January 1 through
December 31.
* * * * *
Full-processing (fully process), with respect to the Atlantic deep-
sea red crab fishery, means any activity that removes meat from any
part of a red crab.
Parlor trap/pot means any structure or other device, other than a
net, with two or more compartments within designed to impede escape,
that is placed, or designed to be placed, on the ocean bottom and is
designed for, or is capable of, catching lobsters and/or red crabs.
Processor, with respect to the Atlantic surf clam and ocean quahog
fisheries, means a person who receives surf clams or ocean quahogs for
a commercial purpose and removes them from a cage.
Processing, or to process, with respect to the Atlantic herring
fishery, means the preparation of Atlantic herring to render it
suitable for human consumption, bait, commercial uses, industrial uses,
or long-term storage, including but not limited to cooking, canning,
roe extraction, smoking, salting, drying, freezing, or rendering into
meat or oil.
* * * * *
Red Crab Management Unit means an area of the Atlantic Ocean from
35 15.3 deg. N. Lat., the approximate latitude of Cape Hatteras Light,
NC, northward to the U.S.-Canada border, extending eastward from the
shore to the outer boundary of the exclusive economic zone and
northward to the U.S.-Canada border in which the United States
exercises exclusive jurisdiction over all Atlantic deep-sea red crab
fished for, possessed, caught or retained in or from such area.
Red crab trap/pot means any structure or other device, other than a
net, that is placed, or designed to be placed, on the ocean bottom and
is designed for, or is capable of, catching red crabs.
* * * * *
Sorting machine, with respect to the Atlantic sea scallop fishery,
means any mechanical device that automatically sorts whole scallops by
shell height, size, or other physical characteristics.
* * * * *
4. In Sec. 648.4, paragraph (a) (13) is added to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(13) Red Crab vessels. Any vessel of the United States must have
been issued and have on board a valid red crab vessel permit to fish
for, catch, possess, transport, land, sell, trade, barter, butcher or
partially process at sea any red crab in or from the EEZ portion of the
Red Crab Management Unit.
(i) Limited access red crab permit--(A) Eligibility. A vessel, or
its replacement, may be issued a limited access red crab permit if the
vessel's total landings averaged greater than 250,000 lb (113,400 kg)
of red crab per year for the 3 years beginning March 1, 1997, through
February 29, 2000. To calculate the average value per year, the total
landings of whole red crab, or its equivalent by weight, between March
1, 1997, and February 29, 2000, inclusive, shall be divided by 3. If
the quotient is greater than 250,000 lb (113,400 kg), the vessel meets
the landings criteria. For example, if a vessel caught greater than
750,000 lb (340,200 kg) in the 3-year qualifying time span--even if it
fished just 2 of those 3 years--the average per year would be greater
than 250,000 lb (113,400 kg).
(B) Application/renewal restriction--(1) Initial application. A
vessel owner must apply for an initial limited access red crab permit
before [insert date 180 days from the effective date of the final
rule]. No vessel owner may apply for an initial limited access red crab
permit after this date.
(2) Fishing years beyond the initial year. (i) For fishing years
beyond the initial year, the provisions of paragraph (a)(1)(i)(B) of
this section apply.
(ii) A vessel owner may choose to declare out of the red crab
fishery for the next fishing year by submitting a binding declaration
on a form supplied by the Regional Administrator, which
[[Page 41945]]
must be received by NMFS at least 180 days before the last day of the
current fishing year. NMFS will presume that a vessel intends to fish
during the next fishing year unless such binding declaration is
received at least 180 days before the last day of the current fishing
year.
(C) Qualification restrictions. The provisions of paragraph
(a)(1)(i)(C) of this section apply.
(D) Change in ownership. The provisions of paragraph (a)(1)(i)(D)
of this section apply.
(E) Replacement vessels. (1) To be eligible for a limited access
permit under this section, the replacement vessel's length, GRT, and NT
may not exceed by greater than 10 percent the length, GRT, and NT of
the vessel's baseline specifications, if applicable. The replacement
vessel must also meet any other applicable criteria under paragraph
(a)(13)(i)(F) of this section.
(2) A vessel that lawfully replaced a vessel that meets the
qualification criteria set forth in paragraph (a)(13)(i)(A) of this
section may qualify for and fish under the permit category for which
the replaced vessel qualified.
(3) A vessel that replaced a vessel that fished for and landed red
crab between March 1, 1997, and February 29, 2000, may use the replaced
vessel's history in lieu of or in addition to such vessel's fishing
history to meet the qualification criteria set forth in paragraph
(a)(13)(i)(A) of this section, unless the owner of the replaced vessel
retained the vessel's permit or fishing history, or such vessel no
longer exists and was replaced by another vessel according to the
provisions in paragraph (a)(1)(i)(D) of this section.
(F) Upgraded vessel. A vessel may be upgraded, whether through
refitting or replacement, and be eligible to retain or renew a limited
access permit, providing that the vessel's length, GRT, and NT is
increased no more than once. Any increase in any of the aforementioned
specifications of vessel size may not exceed 10 percent of the vessel's
baseline specifications, as applicable. If any increase in any of the
aforementioned specifications of vessel size occurs, any increase in
the other specifications must be performed at the same time.
(G) Consolidation restriction. The provisions of paragraph
(a)(1)(i)(G) of this section apply.
(H) Vessel baseline specifications. The vessel baseline
specifications in this section are the respective specifications
(length, GRT, and NT) of the vessel that was initially issued a limited
access permit as of the date the initial vessel applied for such
permit.
(I) Limited access permit restrictions. A vessel issued a limited
access red crab permit may not be issued a red crab incidental catch
permit during the same fishing year.
(J) Confirmation of permit history (CPH). Notwithstanding any other
provisions of this part, a person who does not currently own a fishing
vessel, but who has owned a qualifying vessel that has sunk, been
destroyed, or transferred to another person, must apply for and receive
a CPH if the fishing and permit history of such vessel has been
retained lawfully by the applicant. To be eligible to obtain a CPH, the
applicant must show that the qualifying vessel meets the eligibility
requirements, as applicable, in this part. Issuance of a valid CPH
preserves the eligibility of the applicant to apply for a limited
access permit for a replacement vessel based on the qualifying vessel's
fishing and permit history at a subsequent time, subject to the
replacement provisions specified in this section. If fishing privileges
have been assigned or allocated previously under this part, based on
the qualifying vessel's fishing and permit history, the CPH also
preserves such fishing privileges. A CPH must be applied for in order
for the applicant to preserve the fishing rights and limited access
eligibility of the qualifying vessel. An application for a CPH must be
received by the Regional Administrator no later than 30 days prior to
the end of the first full fishing year in which a vessel permit cannot
be issued. Failure to do so is considered abandonment of the permit as
described in paragraph (a)(1)(i)(K) of this section. A CPH issued under
this part will remain valid until the fishing and permit history
preserved by the CPH is used to qualify a replacement vessel for a
limited access permit. Any decision regarding the issuance of a CPH for
a qualifying vessel that has applied for or been issued previously a
limited access permit is a final agency action subject to judicial
review under 5 U.S.C. 704. Information requirements for the CPH
application are the same as those for a limited access permit. Any
request for information about the vessel on the CPH application form
refers to the qualifying vessel that has been sunk, destroyed, or
transferred. Vessel permit applicants who have been issued a CPH and
who wish to obtain a vessel permit for a replacement vessel based upon
the previous vessel history may do so pursuant to paragraph
(a)(13)(i)(E) of this section.
(K) Abandonment or voluntary relinquishment of permits. The
provisions of paragraph (a)(1)(i)(K) of this section apply.
(L) Restriction on permit splitting. The provisions of paragraph
(a)(1)(i)(L) of this section apply.
(M) Notification of eligibility for 2002. (1) NMFS will attempt to
notify all owners of vessels for which NMFS has credible evidence
available that they meet the qualification criteria described in
paragraph (a)(13)(i)(A) of this section and that they qualify for a
limited access red crab permit. Vessel owners must still apply by
[insert date 180 days from the effective date of the final rule]
to
complete the qualification requirements.
(2) If the vessel owner has not been notified that the vessel is
eligible to be issued a limited access red crab permit, and the vessel
owner believes that there is credible evidence that the vessel does
qualify under the pertinent criteria, the vessel owner may apply for a
limited access red crab permit by [insert date 180 days from the
effective date of the final rule]
by submitting evidence that the
vessel meets the requirements described in paragraph (a)(13)(i)(A) of
this section.
(N) Appeal of denial of a permit. (1) Any applicant denied a
limited access red crab permit may appeal to the Regional Administrator
within 30 days of the notice of denial. Any such appeal shall be in
writing. The only ground for appeal is that the Regional Administrator
erred in concluding that the vessel did not meet the criteria in
paragraph (a)(13)(i)(A) of this section. The appeal must set forth the
basis for the applicant's belief that the decision of the Regional
Administrator was made in error.
(2) The appeal may be presented, at the option of the applicant, at
a hearing before an officer appointed by the Regional Administrator.
The hearing officer shall make a recommendation to the Regional
Administrator. The decision on the appeal by the Regional Administrator
is the final decision of the Department of Commerce.
(3) Status of vessels pending appeal. A vessel denied a limited
access red crab permit may fish, provided that the denial has been
appealed, the appeal is pending, the vessel owner has presented prima
facie evidence that the decision was made in error, and the vessel has
on board a letter from the Regional Administrator authorizing the
vessel to fish. The Regional Administrator will issue such a letter for
the pendency of any appeal. The decision on the appeal is the final
administrative action of the Department of Commerce. The letter of
authorization must be carried on board the vessel. If the appeal is
finally denied, the Regional Administrator
[[Page 41946]]
shall send a notice of final denial to the vessel owner; the
authorizing letter shall become invalid 5 days after receipt of the
notice of denial.
(i) Red crab incidental catch permit. A vessel of the United States
that is subject to these regulations and that has not been issued a red
crab limited access permit is eligible for and may be issued a red crab
incidental catch permit to catch, possess, transport, land, sell,
trade, barter, butcher or partially process at sea up to 500 lb (226.8
kg) of red crab, or its equivalent as specified at
Sec. 648.263(a)(2)(i) and (ii), per fishing trip in or from the Red
Crab Management Unit. Such vessel is subject to the restrictions in
Sec. 648.263(b).
(ii) [Reserved]
5. In Sec. 648.5, the first sentence in paragraph (a) is revised to
read as follows:
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing
Atlantic sea scallops in excess of 40 lb (18.1 kg), NE multispecies,
spiny dogfish, monkfish, Atlantic herring, Atlantic surf clam, ocean
quahog, Atlantic mackerel, squid, butterfish, scup, black sea bass, or
bluefish, harvested in or from the EEZ, or tilefish harvested in or
from the EEZ portion of the Tilefish Management Unit, or Atlantic deep-
sea red crab harvested in or from the EEZ portion of the Red Crab
Management Unit, issued a permit, including carrier and processing
permits, for these species under this part, must have been issued under
this section, and carry on board, a valid operator permit. * * *
* * * * *
6. In Sec. 648.6, paragraph (a)(1) is revised to read as follows:
Sec. 648.6 Dealer/processor permits.
(a) * * *
(1) All dealers of NE multispecies, monkfish, Atlantic herring,
Atlantic sea scallop, Atlantic deep-sea red crab, spiny dogfish, summer
flounder, Atlantic surf clam, ocean quahog, Atlantic mackerel, squid,
butterfish, scup, bluefish, tilefish, and black sea bass; Atlantic surf
clam and ocean quahog processors; and Atlantic herring processors or
dealers, as described in Sec. 648.2; must have been issued under this
section, and have in their possession, a valid permit or permits for
these species. A person who meets the requirements of both the dealer
and processor definitions of any of the aforementioned species' fishery
regulations may need to obtain both a dealer and a processor permit,
consistent with the requirements of that particular species' fishery
regulations. Persons aboard vessels receiving small-mesh multispecies
and/or Atlantic herring at sea for their own use exclusively as bait
are deemed not to be dealers, and are not required to possess a valid
dealer permit under this section, for purposes of receiving such small-
mesh multispecies and/or Atlantic herring, provided the vessel complies
with the provisions of Sec. 648.13.
* * * * *
7. In Sec. 648.7, paragraphs (b)(1)(iii) and (b)(1)(iv) are removed
and paragraph (b)(2) is added to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
* * * * *
(b) * * *
(2) IVR system reports--(i) Atlantic herring owners or operators.
The owner or operator of a vessel described here must report catches
(retained and discarded) of herring each week to an IVR system. The
report shall include at least the following information, and any other
information required by the Regional Administrator: Vessel
identification, reporting week in which species are caught, pounds
retained, pounds discarded, management area fished, and pounds of
herring caught in each management area for the previous week. Weekly
Atlantic herring catch reports must be submitted via the IVR system by
midnight, Eastern Time, each Tuesday for the previous week. Reports are
required even if herring caught during the week has not yet been
landed. This report does not exempt the owner or operator from other
applicable reporting requirements of Sec. 648.7.
(A) The owner or operator of any vessel issued a permit for
Atlantic herring subject to the requirements specified by
Sec. 648.4(c)(2)(vi)(C) that is required by Sec. 648.205 to have a VMS
unit on board must submit an Atlantic herring catch report via the IVR
system each week (including weeks when no herring is caught), unless
exempted from this requirement by the Regional Administrator.
(B) An owner or operator of any vessel issued a permit for Atlantic
herring that is not required by Sec. 648.205 to have a VMS unit on
board and that catches 2,000 lb (907.2 kg) of Atlantic
herring on any trip in a week must submit an Atlantic herring catch
report via the IVR system for that week as required by the Regional
Administrator.
(C) An owner or operator of any vessel that catches
2,000 lb (907.2 kg) of Atlantic herring, some or all of
which is caught in or from the EEZ, on any trip in a week, must submit
an Atlantic herring catch report via the IVR system for that week as
required by the Regional Administrator.
(D) Atlantic herring IVR reports are not required from Atlantic
herring carrier vessels.
(ii) Tilefish vessel owners or operators. The owner or operator of
any vessel issued a limited access permit for tilefish must submit a
tilefish catch report via the IVR system within 24 hours after
returning to port and offloading as required by the Regional
Administrator. The report shall include at least the following
information, and any other information required by the Regional
Administrator: Vessel identification, trip during which species are
caught, and pounds landed. IVR reporting does not exempt the owner or
operator from other applicable reporting requirements of Sec. 648.7.
(iii) Red crab vessel owners and operators. The owner or operator
of any vessel issued a limited access permit for red crab must submit a
red crab catch report via the IVR system within 24 hours after
returning to port and offloading as required by the Regional
Administrator. IVR reporting does not exempt the owner or operator from
other applicable reporting requirements of Sec. 648.7.
* * * * *
8. In Sec. 648.10, paragraph (c) introductory text, and paragraphs
(c)(2) and (c)(5) are revised to read as follows:
Sec. 648.10 DAS notification requirements.
* * * * *
(c) Call-in notification. Owners of vessels issued limited access
multispecies, monkfish or red crab permits who are participating in a
DAS program and who are not required to provide notification using a
VMS, scallop vessels qualifying for a DAS allocation under the
occasional category and who have not elected to fish under the VMS
notification requirements of paragraph (b) of this section, and vessels
fishing pending an appeal as specified in Sec. 648.4(a)(1)(i)(M)(3),
(a)(9)(i)(N)(3) and (a)(13)(i)(N)(3) are subject to the following
requirements:
* * * * *
(2) The vessel's confirmation numbers for the current and
immediately prior multispecies, monkfish or red crab fishing trip must
be maintained on board the vessel and provided to an authorized officer
upon request.
* * * * *
(5) Any vessel that possesses or lands per trip greater than 400 lb
(181 kg) of scallops, and any vessel issued a limited access
multispecies permit subject to the multispecies DAS program and call-
[[Page 41947]]
in requirement that possesses or lands regulated species, except as
provided in Secs. 648.17 and 648.89, any vessel issued a limited access
monkfish permit subject to the monkfish DAS program and call-in
requirement that possesses or lands monkfish above the incidental catch
trip limits specified in Sec. 648.94(c), and any vessel issued a
limited access red crab permit subject to the red crab DAS program and
call-in requirement that possesses or lands red crab above the
incidental catch trip limits specified in Sec. 648.263(b)(1), shall be
deemed in its respective DAS program for purposes of counting DAS,
regardless of whether the vessel's owner or authorized representative
provided adequate notification as required by paragraph (c) of this
section.
* * * * *
9. In Sec. 648.11, the first sentence of paragraph (a) and
paragraph (e) are revised to read as follows:
Sec. 648.11 At-sea sampler/observer coverage.
(a) The Regional Administrator may request any vessel holding a
permit for Atlantic sea scallops, NE multispecies, monkfish, Atlantic
mackerel, squid, butterfish, scup, black sea bass, bluefish, spiny
dogfish, Atlantic herring, tilefish, or Atlantic deep-sea red crab; or
a moratorium permit for summer flounder; to carry a NMFS-approved sea
sampler/observer. * * *
* * * * *
(e) The owner or operator of a vessel issued a summer flounder
moratorium permit, a scup moratorium permit, a black sea bass
moratorium permit, a bluefish permit, a spiny dogfish permit, an
Atlantic herring permit, an Atlantic deep-sea red crab permit, or a
tilefish permit, if requested by the sea sampler/observer, also must:
(1) Notify the sea sampler/observer of any sea turtles, marine
mammals, summer flounder, scup, black sea bass, bluefish, spiny
dogfish, Atlantic herring, Atlantic deep-sea red crab, tilefish, or
other specimens taken by the vessel.
(2) Provide the sea sampler/observer with sea turtles, marine
mammals, summer flounder, scup, black sea bass, bluefish, spiny
dogfish, Atlantic herring, Atlantic deep-sea red crab, tilefish, or
other specimens taken by the vessel.
* * * * *
10. In Sec. 648.12, the introductory text to this section is
revised to read as follows:
Sec. 648.12 Experimental fishing.
The Regional Administrator may exempt any person or vessel from the
requirements of subparts A (General provisions), B (Atlantic mackerel,
squid, and butterfish), D (Atlantic sea scallop), E (Atlantic surf clam
and ocean quahog), F (NE multispecies and monkfish), G (summer
flounder), H (scup), I (black sea bass), J (Atlantic bluefish), K
(Atlantic herring), L (spiny dogfish), M (Atlantic deep-sea red crab),
and N (tilefish) of this part for the conduct of experimental fishing
beneficial to the management of the resources or fishery managed under
that subpart. The Regional Administrator shall consult with the
Executive Director of the MAFMC regarding such exemptions for the
Atlantic mackerel, squid, butterfish, summer flounder, scup, black sea
bass, spiny dogfish, bluefish, and tilefish fisheries.
* * * * *
11. In Sec. 648.13, paragraph (g) is added to read as follows:
Sec. 648.13 Transfers at sea.
* * * * *
(g) All persons are prohibited from transferring at sea, either
directly or indirectly, or attempting to transfer at sea to any vessel,
any red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i)
and (ii), taken in or from the EEZ portion of the Red Crab Management
Unit.
12. In Sec. 648.14, paragraphs (x)(12) and (dd) are added to read
as follows:
Sec. 648.14 Prohibitions.
* * * * *
(x) * * *
(12) Red crab. All red crab retained or possessed on a vessel
issued any permit under Sec. 648.4 are deemed to have been harvested in
or from the Red Crab Management Unit, unless the preponderance of all
submitted evidence demonstrates that such red crab were harvested by a
vessel fishing exclusively outside of the Red Crab Management Unit or
in state waters.
* * * * *
(dd) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section, it
is unlawful for any person to do any of the following:
(1) Catch, possess, transport, land, sell, trade, barter, butcher
or partially process at sea any red crab in or from the EEZ portion of
the Red Crab Management Unit, unless in possession of a valid limited
access red crab vessel permit or red crab incidental catch permit
issued by the Northeast Regional Administrator under this subpart.
(2) Land, or possess on board a vessel, greater than the possession
or landing limits specified in Sec. 648.263.
(3) Fail to comply with the recordkeeping and reporting
requirements of Sec. 648.7.
(4) Transfer at sea, either directly or indirectly, or attempt to
transfer at sea to any vessel, any red crab, or its equivalent as
specified at Sec. 648.263(a)(2)(i) and (ii), taken in or from the EEZ
portion of the Red Crab Management Unit.
(5) Purchase, possess, or receive, greater than 500 lb (226.8 kg)
of whole red crab, or its equivalent as specified at
Sec. 648.263(a)(2)(i) and (ii), caught in the EEZ portion of the Red
Crab Management Unit by a vessel that has not been issued a valid
limited access red crab permit under this subpart.
(6) Purchase, possess, or receive, up to 500 lb (226.8 kg) of whole
red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i) and
(ii), caught in the EEZ portion of the Red Crab Management Unit by a
vessel that has not been issued a valid limited access red crab permit
or red crab incidental catch permit under this subpart.
(7) Fish for, catch, possess, transport, land, sell, trade, barter,
butcher or partially process at sea greater than 500 lb (226.8 kg) of
whole red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i)
and (ii), per fishing trip, in or from the Red Crab Management Unit,
unless in possession of a valid limited access red crab vessel permit
issued by the Northeast Regional Administrator under this subpart and
fishing under a red crab DAS.
(8) Fail to comply with the provisions of the DAS notification
program specified in Secs. 648.262(b)(5) and 648.10, if the vessel has
been issued a valid limited access red crab permit.
(9) Fish in the Red Crab Management Unit under a red crab DAS if
the vessel had declared out of the fishery at least 180 days prior to
the start of the fishing year.
(10) Fish for, catch, possess, transport, land, sell, trade,
barter, butcher or partially process at sea red crab in excess of a
landing limit specified in Sec. 648.263.
(11) Possess, deploy, fish with, haul, harvest red crab from, or
carry on board a vessel, in excess of the trap/pot and/or string limit
specified at Sec. 648.264(a)(2) when fishing under a red crab DAS.
(12) Retain, possess or land female red crabs in excess of one
standard U.S. fish tote if the vessel has been issued a valid limited
access red crab permit and is fishing under a red crab DAS.
(13) Retain, possess or land red crab claws and legs separate from
crab bodies in excess of one standard U.S. fish tote if the vessel has
been issued a valid
[[Page 41948]]
limited access red crab permit and is fishing under a red crab DAS.
(14) Retain, possess or land red crab claws and legs separate from
crab bodies if the vessel has not been issued a valid limited access
red crab permit or has been issued a valid limited access red crab
permit and is not fishing under a red crab DAS.
(15) Retain, possess or land in excess of two claws and eight legs
per crab if the vessel has been issued a valid red crab incidental
catch permit or has been issued a valid limited access red crab permit
and is not fishing under a red crab DAS.(16) Fully process red crabs at
sea, i.e., any activity that removes meat from any part of a red crab.
(17) Fail to comply with the gear marking requirements specified at
Sec. 648.264(a)(5).
(18) Possess, fish or deploy parlor traps/pots if the vessel has
been issued a valid limited access red crab permit and is fishing under
a red crab DAS.
(19) Possess, fish or deploy red crab traps/pots larger than the
maximum size specified at Sec. 648.263(a)(4), if the vessel has been
issued a valid limited access red crab permit and is fishing under a
red crab DAS.
13. Subpart M is added to read as follows:
Subpart M--Management Measures for the Atlantic Deep-Sea Red Crab
Fishery
Sec.
648.260 Annual specifications.
648.261 In-season adjustments and annual specification/framework
adjustment process.
648.262 Effort-control program for red crab limited access vessels.
648.263 Red crab possession and landing restrictions.
648.264 Gear requirements/restrictions.
Subpart M--Management Measures for the Atlantic Deep-Sea Red Crab
Fishery
Sec. 648.260 Annual specifications.
(a) Fishing year. The fishing year begins on March 1 of each year
and ends on the last day of February of the following year.
(b) Total allowable catch. The TAC for each fishing year will be
5.928 million lb (2,688.9 mt), unless modified pursuant to paragraph
(d) of this section.
(c) Adjustments to the TAC. Any overage of the TAC for the limited
access category that occurs in a given fishing year will be subtracted
from the TAC for that category in the following fishing year.
Conversely, any underage of the TAC for the limited access category
that occurs in a given fishing year will be added to the TAC for that
category in the following fishing year.
(d) Process for setting annual specifications. The Council's Red
Crab Plan Development Team (PDT) will meet at least annually to review
the status of the stock and the fishery. (1) Based on this review, the
PDT will report to the Council's Red Crab Committee, no later than 5
months prior to the start of the next fishing year, any necessary
adjustments to the management measures and recommendations for the
specifications and/or TACs. Specifications include the specification of
OY, the setting of any hard or target TACs, allocation of DAS, and/or
adjustments to trip/possession limits. The PDT will specifically
recommend TACs for the following year and an estimated TAC for the year
after. In developing these recommendations the PDT will review the
following data, if available: Commercial catch data; current estimates
of fishing mortality and catch-per-unit-effort (CPUE); stock status;
recent estimates of recruitment; virtual population analysis results
and other estimates of stock size; sea sampling, port sampling, and
survey data or, if sea sampling data are unavailable, length frequency
information from port sampling and/or surveys; impact of other
fisheries on the mortality of red crabs; and any other relevant
information.
(2) Based on recommendations from the Council's Red Crab PDT after
its review of the available information on the status of the stock and
the fishery, the Red Crab Committee may recommend to the Council
changes to the appropriate specifications and/or the annual TAC, as
well as any measures necessary to assure that the specifications will
not be exceeded.
(3) The Council shall review these recommendations and any public
comment received and shall recommend to the Regional Administrator
appropriate specifications and/or annual TAC, as well as any measures
necessary to assure that the specifications will not be exceeded.
Specifications, and/or TACs and other management measures, shall be
implemented by the Regional Administrator, and may include the
specification of OY, the setting of any hard or target TACs, allocation
of DAS, and/or adjustments to trip/possession limits. Annual
specifications and other measures shall be implemented through the
framework adjustment process specified at Sec. 648.261. The previous
year's specifications/TACs and other measures shall remain effective
unless changed by the Regional Administrator. If the specifications are
not changed, this will be announced through notification in the Federal
Register.
Sec. 648.261 In-season adjustments and annual specification/framework
adjustment process.
(a) In-season adjustments. The specifications and TACs established
pursuant to this section may be adjusted by NMFS, after consulting with
the Council, during the fishing year by publishing notification in the
Federal Register stating the reasons for such action and providing an
opportunity for prior public comment. Any adjustments must be
consistent with the Atlantic Deep-Sea Red Crab FMP objectives and other
FMP provisions.
(b) Annual specification/framework adjustment process. To implement
annual specifications or a framework adjustment for the Red Crab FMP,
the Council shall develop and analyze proposed actions over the span of
at least two Council meetings and provide advance public notice of the
availability of both the proposals and the analyses. Opportunity to
provide written and oral comments shall be provided throughout the
process before the Council submits its recommendations to the Regional
Administrator.
(1) In response to an annual review of the status of the fishery or
the resource by the Red Crab PDT, or at any other time, the Council may
recommend adjustments to any of the measures proposed by the Red Crab
FMP. The Red Crab Oversight Committee may request that the Council
initiate a framework adjustment. Framework adjustments shall require
one initial meeting (the agenda must include notification of the
impending proposal for a framework adjustment) and one final Council
meeting. After a management action has been initiated, the Council
shall develop and analyze appropriate management actions within the
scope identified below. The Council may refer the proposed adjustments
to the Red Crab Committee for further deliberation and review. Upon
receiving the recommendations of the Oversight Committee, the Council
shall publish notice of its intent to take action and provide the
public with any relevant analyses and opportunity to comment on any
possible actions. After receiving public comment, the Council must take
action (to approve, modify, disapprove, or table) on the recommendation
at the Council meeting following the meeting at which it first received
the recommendations. Documentation and analyses for the framework
adjustment shall be available at least 2 weeks before the final
meeting.
[[Page 41949]]
(2) After developing management actions and receiving public
testimony, the Council may make a recommendation to the Regional
Administrator. The Council's recommendation shall include supporting
rationale, an analysis of impacts required under paragraph 1 of this
section and a recommendation to the Regional Administrator on whether
to issue the management measures as a final rule. If the Council
recommends that the management measures should be issued directly as a
final rule, the Council shall consider at least the following factors
and provide support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(iii) Whether there is an immediate need to protect the resource or
to impose management measures to resolve gear conflicts;
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) If the Regional Administrator concurs with the Council's
recommended management measures, they shall be published in the Federal
Register. If the Council's recommendation is first published as a
proposed rule and the Regional Administrator concurs with the Council's
recommendation after receiving additional public comment, the measures
shall then be published as a final rule in the Federal Register.
(4) If the Regional Administrator approves the Council's
recommendations, the Secretary may, for good cause found under the
standard of the Administrative Procedure Act, waive the requirement for
a proposed rule and opportunity for public comment in the Federal
Register. The Secretary, in so doing, shall publish only the final
rule. Submission of recommendations does not preclude the Secretary
from deciding to provide additional opportunity for prior notice and
comment in the Federal Register.
(5) The Regional Administrator may approve, disapprove, or
partially disapprove the Council's recommendation. If the Regional
Administrator does not approve the Council's specific recommendation,
the Regional Administrator must notify the Council in writing of the
reasons for the action prior to the first Council meeting following
publication of such decision.
Sec. 648.262 Effort-control program for red crab limited access
vessels.
(a) General. A vessel issued a limited access red crab permit may
not fish for, catch, possess, transport, land, sell, trade, barter,
butcher or partially process at sea greater than 500 lb (226.8 kg) of
red crab, or its equivalent as specified at Sec. 648.263(a)(2)(i) and
(ii), per fishing trip in or from the Red Crab Management Unit, except
during a DAS as allocated under and in accordance with the applicable
DAS program described in this section, unless otherwise provided in
this part.
(1) End-of-year carry-over. With the exception of vessels that held
a Confirmation of Permit History as described in
Sec. 648.4(a)(13)(i)(J) for the entire fishing year preceding the
carry-over year, limited access vessels that have unused DAS on the
last day of February of any year may carry over a maximum of 10 unused
DAS, or 10 percent of the total allocated DAS, whichever is less, into
the next fishing year. Any DAS that have been forfeited due to an
enforcement proceeding will be deducted from all other unused DAS in
determining how many DAS may be carried over.
(2) [Reserved]
(b) DAS program--(1) For fishing year 2002. For the fishing year
beginning March 1, 2002, each limited access permit holder's allocation
of DAS shall be based on a baseline of 130 DAS per vessel and, if
necessary, adjusted as specified below. Based upon the best available
information, the Regional Administrator shall estimate the landings
from May 15, 2002, which is the first day following the expiration of
the red crab Secretarial interim rule, up to the implementation date of
the red crab limited access program. These estimated total landings
shall be deducted from the target TAC and the percentage of the TAC
that remains available shall be used to reduce the initial baseline of
DAS (i.e., a percentage of 130 DAS to an equivalent percentage). For
example, if estimated landings equal 20 percent of the target TAC,
thereby leaving 80 percent of the target TAC, the DAS allocation shall
be reduced by 20 percent to 104 DAS. Each vessel shall be allocated the
adjusted DAS for the remainder of the fishing year. The Regional
Administrator shall publish in the Federal Register the adjusted DAS
for the remainder of the fishing year.
(2) For fishing years 2003 and thereafter. Each limited access
permit holder shall be allocated 156 DAS unless one or more vessels
declares out of the fishery consistent with Sec. 648.4(a)(13)(i)(B)(2)
or the TAC is adjusted consistent with Sec. 648.260(c).
(3) Accrual of DAS. Any portion of a day in which a vessel is out
of port, after having declared into the DAS fishery, shall count as a
full DAS. For example, if a vessel calls into the fishery at 11 p.m. on
Thursday and calls out of the fishery at 10 p.m. on Friday, the next
day, that vessel shall be assessed 2 full DAS (48 hours) for the
fishing trip, even though the trip lasted only 23 hours.
(4) Good Samaritan credit. Same as Sec. 648.53(f).
(5) Declaring red crab DAS. A vessel's owner or authorized
representative shall notify the Regional Administrator of a vessel's
participation in the red crab DAS program using the notification
requirements specified in Sec. 648.10.
(6) Adjustments in annual red crab DAS allocations. Adjustments to
the annual red crab DAS allocation, if required to meet fishing
mortality goals, may be implemented pursuant to Sec. 648.260(c).
Sec. 648.263 Red crab possession and landing restrictions.
(a) Vessels issued limited access red crab permits--(1) Possession
and landing restrictions--(i) A vessel or operator of a vessel that has
been issued a valid limited access red crab permit under this subpart
may fish for, catch, possess, transport, land, sell, trade, barter,
butcher or partially process at sea up to 75,000 lb (34,019.4 kg) per
trip, unless adjusted consistent with paragraph (a)(1)(ii) of this
section, of whole red crab, or its equivalent as specified at
paragraphs (a)(2)(i) and (ii) of this section, per fishing trip when
fishing under a red crab DAS.
(ii) A vessel owner or operator who shows credible proof of
landings on one trip higher than 75,000 lb (34,019.4 kg) shall qualify
for a larger trip limit, rounded to the nearest 5,000 lb (2,268 kg)
during the limited access qualification period of the higher trip
landed. Such proof must be received by NMFS within 30 days after
receipt of a vessel owner's application for an initial limited access
red crab vessel permit. A vessel owner shall fish consistent with the
provisions and trip limit specified at paragraph (a)(1)(i) of this
section until credible proof of a trip higher than 75,000 lb (34,019.4
kg) is approved by NMFS.
(2) Conversion to whole crab weight. (i) For red crab that is
landed in half sections, with all gills and other detritus
[[Page 41950]]
still intact, the recovery rate is 64 percent of a whole red crab,
which is equal to the weight of red crab half sections multiplied by
1.56.
(ii) For red crab that is landed in half sections, with all gills
and other detritus removed, the recovery rate is 58 percent of a whole
red crab, which is equal to the weight of red crab half sections
multiplied by 1.72.
(3) Female red crab restriction. A vessel may not fish for, catch,
possess, transport, land, sell, trade, barter, butcher or partially
process at sea female red crabs in excess of one standard U.S. fish
tote of incidentally caught female red crabs per trip when fishing
under a red crab DAS.
(4) Full-processing prohibition. No person may fully process at
sea, or possess, or land, fully-processed red crab (i.e., the removal
of meat from any part of a red crab is not permitted).
(5) Mutilation restriction. A vessel may not retain, possess or
land red crab claws and legs separate from crab bodies in excess of one
standard U.S. fish tote per trip when fishing under a red crab DAS.
(b) Vessels issued red crab incidental catch permits--(1)
Possession and landing restrictions. A vessel or operator of a vessel
that has been issued a red crab incidental catch permit may catch,
possess, transport, land, sell, trade, barter, butcher or partially
process at sea up to 500 lb (226.8 kg) of red crab, or its equivalent
as specified at Sec. 648.262(a)(i) and (ii), per fishing trip in or
from the Red Crab Management Unit.
(2) Full-processing prohibition. No person may fully process at
sea, or possess, or land, fully-processed red crab (i.e., the removal
of meat from any part of a red crab is not permitted).
(3) Mutilation restriction. A vessel may not retain, possess or
land red crab claws and legs separate from crab bodies.
Sec. 648.264 Gear requirements/restrictions.
(a) Limited access red crab permitted vessels. (1) No vessel may
haul any fishing gear other than red crab traps/pots, marked as
specified by paragraph (a)(5) of this section, when on a red crab DAS.
(2) A vessel or operator of a vessel may fish with, deploy,
possess, haul, harvest red crab from, or carry on board a vessel, up to
a total of 600 traps/pots when fishing for, catching, or landing red
crab when on a red crab DAS. A vessel owner is required to declare, on
the annual permit application, the maximum number of traps/pots used
per string and the maximum number of strings employed, such that the
product of the maximum number of traps/pots per string and the maximum
number of strings declared is no more than 600 traps/pots. The vessel
is restricted to the product of the maximum number of traps/pots per
string multiplied by the maximum number of strings declared on the
annual vessel permit application.
(3) Parlor traps/pots. The use of parlor traps/pots in the red crab
fishery is prohibited when fishing in the red crab fishery under a red
crab DAS.
(4) Maximum trap/pot size. The maximum allowable trap/pot size of
traps/pots used or deployed on a red crab DAS is 18 cubic feet (0.51
cubic meters) in volume. Traps/pots may be rectangular, trapezoidal or
conical only, unless other new trap/pot designs whose volume does not
exceed 18 cubic feet (0.51 cubic meters) are authorized by the Regional
Administrator.
(5) Gear markings. The following is required on all buoys used at
the end of each red crab trawl:
(i) The letters ``RC'' in letters at least 3 inches (7.62 cm) in
height must be painted on top of each buoy.
(ii) The vessel's permit number in numerals at least 3 inches (7.62
cm) in height must be painted on the side of each buoy to clearly
identify the vessel.
(iii) The number of each trap trawl relative to the total number of
trawls used by the vessel (i.e., ``3 of 6'') must be painted in
numerals at least 3 inches (7.62 cm) in height on the side of each
buoy.
(iv) High flyers and radar reflectors are required on each trap
trawl.
[FR Doc. 02-15595 Filed 6-19-02; 8:45 am]
BILLING CODE 3510-22-S